Abortion is a word used thousands of times every day these days. Tens of thousands are writing about it. Hundreds of thousands are worried about it. Millions are arguing about it. The ethics of writing about it are fraught with danger, hostile reactions, stalking, polarizing, blaming, cursing, loving, hating, and profiting from it financially, politically, and reluctantly.

The ethics and morality of it are also generating ink, pod casts, digital space, bots, spots, rots, tweets, signs, protests, and fear. Fear may be its most common denominator. Millions of women are afraid their right to it is lost. Millions are afraid God no longer cares about women. So, with all that fear and almost no joy, what can be said about the morality, ethicality, and sociality of it?  

The Pew Research Center, as of May 2022 says, “Relatively few Americans view the morality of abortion in stark terms: Overall, just 7% of all U.S. adults say abortion is morally acceptable in all cases, and 13% say it is morally wrong in all cases. A third say that abortion is morally wrong in most cases, while about a quarter (24%) say it is morally acceptable most of the time. One-in-five do not consider abortion a moral issue.”[1]

Almost everyone thinks religion and abortion are linked like fraternal twins—with mirror image status. Without religion, abortion would not be a political issue, some say. But the breakdown is worth a look. “White evangelical Protestants overwhelmingly say abortion is morally wrong in most (51%) or all cases (30%). A slim majority of Catholics (53%) also view abortion as morally wrong, but many also say it is morally acceptable in most (24%) or all cases (4%), or that it is not a moral issue (17%). And among religiously unaffiliated Americans, about three-quarters see abortion as morally acceptable (45%) or not a moral issue (32%).”

Many researchers have studied the data and break down Americans this way: Adults. Republicans. Democrats. Protestant. White/evangelical. White/non evangelical. Black Protestant. Catholic. Religiously unaffiliated. Atheist. Agnostic. Nothing.

Once categorized in these political/religious boxes, data miners can evaluate the morality of abortion. The group that defines abortion morally wrong in all cases is White Evangelical—30%. The group that believe abortion is morally acceptable in all cases are Atheists—25%.  Only 13% of U.S. adults think abortion is morally wrong in all cases.

But six of nine Supreme Court justices just launched both a legal and moral war by making abortion legal in some states and illegal in other states. They did that by declaring abortion is no longer a constitutional right. And they did it in a 213-page opinion discussing a half-dozen constitutional amendments while skirting around the First Amendment.[2]

Dobbs v. Jackson Women’s Health Organization demolished abortion rights. The majority held that Roe v. Wade and Planned Parenthood v. Casey, are overruled because the Constitution does not reference abortion. The right to it is not implicitly protected by constitutional provision. It is not deeply rooted in this nation’s history and tradition, nor implicit in ordered liberty, nor or justified as a component of broader entrenched right. Those fifty-eight words took 213 pages of explanation that was favored by far less than half of every adult in America. So much for justice and liberty for all.

Roe v. Wade held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Dobbs v. Jackson Women’s Health held that the authority to regulate abortion is returned to the people and their elected representatives. The legal consequence of this ruling is those states with Republican elected representatives will ban abortion. Those states with Democrat elected representatives will allow abortions. That’s the legal balance.

Theoretically, neither morality nor ethicality hold sway over judicial rulings at any level, especially not at the Supreme Court. Dobbs v. Jackson Women’s Health found a way to ban abortion without banning abortion. They kicked the availability of abortion back down to the states, which will ban or allow abortions based entirely on political preference.

The First Amendment gap between church and state just became a sliver. Theoretically, the First Amendment insists that Congress cannot pass laws respecting an establishment of religion or prohibiting the free exercise thereof. Those two parts, known as the “establishment clause” and the “free exercise clause” form the textual basis for the Supreme Court’s interpretations. But they have no direct bearing on the morality or ethicality of abortion. That’s now left up to the political makeup of our not-so united states of America.

Abortion history is a tangled web of right and wrong that is as old as pregnancy. Women have chosen to have abortions since the beginning recorded history. “Early Jews and Christians forbade abortion on practical and religious grounds. A human life was viewed as valuable, and there was also the practical consideration of the addition of another person to the population, i.e., more brute strength to do the necessary physical work, defend against enemies, and ensure the continuation of the people.”[3]

In short, sensible, real-life reasons favoring or opposing abortion have little to do with the Western concept of abortion in general or what is going on in America today. The legal issue, as framed politically, is whether state governments can wade, feet first, into private social spheres to regulate the personal activities of individuals, namely women. The Supreme Court avoids gender by not making statements or rulings based solely on gender. But abortion only impacts women.  The Supreme Court also avoids dicta regarding the moral permissibility of abortion. It makes law by not making law. It ducks abortion by allowing or preventing individual states from interfering with a woman’s action based on her personal convictions.

At the end of the day, as our British founders were fond of saying, abortion will be treated, or not, as a fundamental civil right. What Dobbs v. Women’s Health means is that women no longer have a constitutional right to abortion unless an individual state makes abortion a constitutional right. The answer is neither moral nor ethical. But it will be fought at state level because women will lead, on both sides. Most women have clearly stated that abortion is a woman’s fundamental civil right. The question remains whether men will stand up for their women.

[1] https://www.pewresearch.org/religion/2022/05/06/social-and-moral-considerations-on-abortion/

[2] Dobbs, State Health Officer of the Mississippi Department of Health, et al vs. Jackson Women’s Health Organization, et al. 42 S. Ct. 2228, June 24, 2022  

[3] https://pubmed.ncbi.nlm.nih.gov/7041095/

Gary L Stuart

I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.

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